United States District Court, D. Kansas
KELLY D. MINGUS, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying
Supplemental Security Income (SSI) benefits under sections
1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C.
§§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act).
Finding the Administrative Law Judge (ALJ) failed adequately
to consider the third-party opinion of Plaintiff's
friend, the court ORDERS that the Commissioner's decision
shall be REVERSED and that judgment shall be entered pursuant
to the fourth sentence of 42 U.S.C. § 405(g) REMANDING
the case for further consideration consistent with this
applied for SSI benefits, alleging disability beginning
February 28, 2012. (R. 23, 199). Plaintiff exhausted
proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. She argues
that the residual functional capacity (RFC) assessed is not
supported by substantial evidence, that the ALJ did not
adequately consider all of her impairments including
end-stage COPD (chronic obstructive pulmonary disease), that
he erred in evaluating the credibility of her allegations of
symptoms, and that he failed adequately to consider the
opinion of her friend, Ms. Miller.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of the Act provides that in judicial review
“[t]he findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ's factual findings are
supported by substantial evidence in the record and whether
he applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
accord, White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001). Substantial evidence is more than a
scintilla, but it is less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
court may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not
simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion. Gossett, 862 F.2d at
804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. § 416.920;
Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir.
2010) (citing Williams v. Bowen, 844 F.2d 748, 750
(10th Cir. 1988)). “If a determination can be made at
any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.”
Wilson, 602 F.3d at 1139 (quoting Lax, 489
F.3d at 1084). In the first three steps, the Commissioner
determines whether claimant has engaged in substantial
gainful activity since the alleged onset, whether he has a
severe impairment(s), and whether the severity of his
impairment(s) meets or equals the severity of any impairment
in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P,
App. 1). Williams, 844 F.2d at 750-51. After
evaluating step three, the Commissioner assesses
claimant's RFC. 20 C.F.R. § 416.920(e). This
assessment is used at both step four and step five of the
sequential evaluation process. Id.
Commissioner next evaluates steps four and five of the
sequential process--determining at step four whether, with
the RFC assessed, claimant can perform her past relevant
work; and at step five whether, when also considering the
vocational factors of age, education, and work experience,
claimant is able to perform other work in the economy.
Wilson, 602 F.3d at 1139 (quoting Lax, 489
F.3d at 1084). In steps one through four the burden is on
Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903,
907 (10th Cir. 2006); accord, Dikeman v.
Halter, 245 F.3d 1182, 1184 (10th Cir. 2001);
Williams, 844 F.2d at 751 n.2. At step five, the
burden shifts to the Commissioner to show that there are jobs
in the economy which are within the RFC assessed.
Id.; Haddock v. Apfel, 196 F.3d 1084, 1088
(10th Cir. 1999).
court finds that remand is necessary because the ALJ did not
adequately consider the third-party opinion. It will not
provide an advisory opinion regarding the other errors
alleged in Plaintiff's Brief, but she may raise those
issues before the Commissioner on remand.
argues that the ALJ “improperly failed to address or
consider the testimony of Tracy Miller . . . in evaluating
plaitniff's [sic] claim.” (pl. Br. 13) (citing
Blea, 466 F.3d at 915; and Adams v. Chater,
93 F.3d 712, 715 (10th Cir. 1996)). In her response brief,
the Commissioner did not acknowledge this argument, and said
nothing regarding Ms. Miller's testimony or the ALJ's
evaluation of it.
Plaintiff's Brief suggests, Blea, and
Adams control the decision in this case. In the
Tenth Circuit, an ALJ is not required to make specific,
written findings regarding each witness's credibility
when the written decision reflects that the ALJ considered
that testimony. Blea, 466 F.3d at 914-15; Adams
v. Chater, 93 F.3d 712, 715 (10th Cir. 1996). In
Adams, the court “decline[d] claimant's
invitation to adopt a rule requiring an ALJ to make specific
written findings of each witness's credibility,
particularly where the written decision reflects that the ALJ
considered the testimony.” 93 F.3d at 715. The
Adams court determined “that the ALJ
considered the testimony of claimant's wife in making his
decision because he specifically referred to it in his
written opinion, ” and the court found no error in
the ALJ's failure to make specific, written
findings regarding the testimony. Id.
(emphasis added). Thirteen years later, the Tenth Circuit
confirmed the rule that an ALJ is not required to make
specific written findings of credibility regarding
third-party testimony if the written decision reflects that
the ALJ considered it. Blea, 466 F.3d at 915. The
Blea court noted that, “[h]ere, the ALJ made
no mention of Mrs. Blea's testimony, nor did he refer to
the substance of her testimony anywhere in the written
decision. Thus, it is not at all ‘clear that the ALJ
considered [Mrs. Blea's] testimony in making his
decision.'” Id. (quoting Adams,
93 F.3d at 715).
relevant part, this case is substantially identical to the
Blea case. Here, Ms. Miller testified that since
2012 Plaintiff has had significant limitations in her
performance of certain activities including walking,
standing, and even washing her hair. (R. 62-67). The ALJ
found that Plaintiff is precluded from performing gainful
activity beginning when she became 55 years of age on
February 16, 2015, but not before then. (R. 29). Thus, Ms.
Miller's testimony is relevant to the onset date of her
disability. However, in the decision at issue here, the ALJ
did not even mention that Ms. Miller testified at the
hearing, or in any way discuss her opinions. In accordance
with Tenth Circuit law, remand is necessary for the
Commissioner properly to consider Ms. Miller's opinions.
IS THEREFORE ORDERED that the Commissioner's
decision shall be REVERSED and that judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g)